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Docket: 2003-723(IT)I |
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BETWEEN: |
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DEBORAH BACHAND, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN,
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Respondent. |
____________________________________________________________________
Appeal heard on September 19, 2003 at Ottawa, Canada
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Before: The Honourable Justice T. O'Connor |
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Appearances: |
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Counsel for the Appellant: |
Sonia Levesque-Parsons |
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Counsel for the Respondent: |
George Boyd Aitken |
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JUDGMENT
The appeal from the assessments made under the Income Tax Act for the 1999 and 2000 base taxation years for the period June 2001 to June 2002 is dismissed for the reasons set forth in the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 14th day of January 2004.
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"T. O'Connor" |
O'Connor, J.
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Citation: 2004TCC1 |
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Date: 20040114 |
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Docket: 2003-723(IT)I |
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BETWEEN: |
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DEBORAH BACHAND, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN,
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Respondent. |
REASONS FOR JUDGMENT
O'Connor, J.
[1] The issue in this appeal relates to whether the Appellant is entitled to certain Child Tax Benefits. The basic facts and issues are set forth in the following paragraphs of the Reply to the Notice of Appeal.
5. By CTB Notices dated June 20, 2002, the Minister of National Revenue (the "Minister") informed the Appellant that with respect to the 1999 and 2000 "base taxation years", it had been re-determined that the amount of Child Tax Benefits she had received in regard to the said "base taxation years" had been overpaid by the amounts of $156.25 and $1,991.00 respectively.
6. In so re-determining the Appellant's Child Tax Benefits ("CTB") for the 1999 "base taxation year" and 2000 "base taxation year" on June 20, 2002, the Minister relied on the following assumptions of fact:
a) at all material times, the Appellant and the Former Spouse, James O'Dell, (the "Former Spouse") had two children who were eligible for the CTB, Vinson, born January 25, 1985 (the "Child") and Daniel born January 1, 1988;
b) the Child referred to in subparagraph 6(a) herein was a 'qualified dependant' as defined in subsection 122.5(1) of the Income Tax Act (the "Act");
c) the Appellant and Former Spouse separated in 1991 and divorced in 1999;
d) in May, 2001, the Child left the Appellant's home and resided with the Former Spouse until June, 2002;
e) during the time frame referred to in subparagraph 6(d) herein, the Child spent three weeks with the Appellant during July, 2001 but otherwise resided with the Former Spouse;
f) the Appellant has not shown that she was the parent of the 'qualified dependant' who was primarily responsible for the care and upbringing of the 'qualified dependant'; and
g) the Appellant was not an 'eligible individual' as defined in section 122.6 of the Act.
B. ISSUES TO BE DECIDED
7. The issue is whether the Appellant is entitled to receive Child Tax Benefits in regard to the 1999 "base taxation year" and 2000 "base taxation year" for the period June, 2001 to June, 2002 inclusively for the Child.
C. STATUTORY PROVISIONS, GROUNDS RELIED ON AND RELIEF SOUGHT
8. He relies on sections 122.6, 122.61, subsection 248(1) and paragraph 122.6(h) of the Act under the definition of "eligible individual" and Regulation 6302 of the Income Tax Regulations (the "Regulations").
9. He submits that the Appellant was not an 'eligible individual' as she did not reside with the 'qualified dependant' during the period June, 2001 to June, 2002 inclusively and the Appellant has not established that she was primarily responsible for the care and upbringing of the Child within the meaning of section 122.6 of the Act as defined in Regulation 6302 of the Regulations and is therefore not eligible for the CTB for the Child with respect to the said period in regard to the 1999 and 2000 "base taxation years" as indicated in the Child Tax Benefit Notices dated June 20, 2002.
Analysis
[2] The sole issue in this appeal is whether the Appellant was the eligible individual in respect of her child, Vinson who was a qualified dependant. The relevant portion of the definition of eligible individual in section 122.6 of the Act reads:
In this subdivision,
"eligible individual" in respect of a qualified dependant at any time means a person who at that time
(a) resides with the qualified dependant,
(b) is the parent of the qualified dependant who primarily fulfils the responsibility for the care and upbringing of the qualified dependant,
...
[3] Sections 122.6 to 122.64 of the Act were enacted in 1992 in order to consolidate the existing benefits available with respect to certain persons. This benefit is payable in respect of "qualified dependants". A qualified dependant must be under 18 at the relevant time which was indeed the case with Vinson. The benefit is payable to an "eligible individual". In order to qualify as an eligible individual, the individual at that time must (a) reside with the qualified dependant; and (b) be the parent who primarily fulfils the responsibility for the child's care and upbringing. In this appeal, it is necessary for the Appellant to demonstrate that both of the above requirements have been met.
[4] The Appellant in this case was represented by Ms. Sonia Levesque-Parsons of West End Legal Services of Ottawa and considerable testimony was heard with respect to the Appellant's attention to - Vinson relative to schools, pharmacies, medical and dental appointments and many other matters related to Vinson's care. However, it is clear from all of the testimony that Vinson did not reside with the Appellant but rather with his father during the relevant period of June 2001 to June 2002. The Appellant stated this clearly in her testimony, adding that Vinson never slept at home during that period. The Appellant attempted to back off by referring to times Vinson spent in her house and stating she kept his room for him. However this and the other evidence do not in my opinion establish residence.
[5] As stated by Bonner J. in S.R. v. the Queen, Docket: 2003-602(IT)I:
The word "reside" with as used in the section 122.6 definition of the term "eligible individual" must be construed in a manner which reflects the purpose of the legislation. That legislation was intended to implement the child tax benefit. That benefit was introduced in 1993 with a view to providing a single nontaxable monthly payment to the custodial parent of a child. That payment was intended to benefit the child by providing funds to the parent who primarily fulfilled the responsibility for the care and upbringing of the child. The threshold test is whether the child resides with the parent. Physical presence of the child as a visitor in the residence of a parent does not satisfy the statutory requirement. The word "resident" as used in s. 122.6 connotes a settled and usual abode.
[6] It is also been established that as the father filed an application for the Child Tax Benefit the female presumption is not applicable.
[7] It was also established that the father continued to pay child support to the Appellant in respect of Vinson and another child. Several cheques were filed as exhibits to establish this fact. However it is clear that the payment of child support is not sufficient to establish residence. The fact is that Vinson resided with his father during the relevant period. Although the Appellant did attend to the care and needs of Vinson on several occasions that is not sufficient to establish residence. As mentioned there are two conditions for entitlement one being residence with the qualified dependant and the other being the primary caregiver. It may be possible in certain circumstances to consider the Appellant as the primary caregiver but even if this is so the residence requirement was not met and consequently the Appellant is not the eligible individual.
[8] Consequently the appeal is dismissed.
Signed at Ottawa, Canada, this 14th day of January 2004.
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"T. O'Connor" |
O'Connor, J.
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CITATION: |
2004TCC1 |
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COURT FILE NO.: |
2003-723(IT)I |
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STYLE OF CAUSE: |
Deborah Bachand and H.M.Q. |
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PLACE OF HEARING: |
Ottawa, Ontario |
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DATE OF HEARING: |
September 19, 2003 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice T. O'Connor |
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DATE OF JUDGMENT: |
January 14, 2004 |
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APPEARANCES: |
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Counsel for the Appellant: |
Sonia Levesque-Parsons |
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Counsel for the Respondent: |
George Boyd Aitken |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
Sonia Levesque-Parsons |
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Firm: |
West End Legal Services of Ottawa Ottawa, Ontario |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |